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Ford has urged the release of the recovered video. Police say it’s up to the courts, but at least one criminal lawyer says there’s no legal reason not to.

Police Chief Bill Blair, who revealed Thursday that police have recovered the "crack video" from a deleted hard drive, is now being petitioned by Mayor Rob Ford and media alike to release it publicly. (MARK BLINCH / REUTERS)

There’s no legal barrier preventing Police Chief Bill Blair from releasing the video that appears to show Mayor Rob Ford with a crack pipe, according to at least one senior criminal lawyer.

On his radio show Sunday, Ford said police should immediately release the video that his friend, Alexander “Sandro” Lisi, has been charged with trying to retrieve. Lisi was charged with extortion last week.

“I believe that this video — I want the police chief, Bill Blair, to release this video, for every single person in the city to see,” Ford said.

His lawyer, Dennis Morris, has already called on police to release the video, recovered from a deleted hard drive, because it might show Ford smoking something other than crack cocaine, perhaps tobacco or pot.

Toronto Police spokesman Mark Pugash says it is not up to police to release evidence to the public. “We are required by the law to turn the evidence over to the courts. The courts, alone, have the authority to decide what can be released.”

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In general, such evidence is supposed to be sent over to the defence in a timely fashion, but in practice and for various reasons, this can take months. If the defendant pleads guilty, it’s possible the evidence is never entered as a court exhibit available for public scrutiny.

Prominent criminal lawyer John Struthers asked why — if it’s the case that only the courts can decide on release of evidence — do police stage press conferences where they show guns, drugs and money seized as part of major investigations? They also release videotape surveillance of shootings and evidence of robberies and TTC videos, he noted.

“The only way they couldn’t release it is if they were going to taint witnesses,” Struthers said Sunday. For example, if someone is charged with a robbery, “they’re not going to release the video so all of the witnesses then say: ‘That’s the guy.’”

Besides, the star of the video — the existence of which was first reported by the Toronto Star and Gawker.com last May — is purportedly Ford, not Lisi, he said. “The only guy in it has asked for its release, so at this point there is no longer privacy concerns,” he said.

Pugash disagreed with Struthers. Police display evidence only when it’s not directly connected to a case or an accused person, and release surveillance video when they are trying to arrest someone or obtain information about a crime.

A Crown attorney not connected to the case, but who asked not to be named, agreed there is no legal hurdle to police releasing the video.

However, the prosecutor can’t see that happening because Lisi’s lawyer could argue that its release might prejudice his client’s right to a fair trial.

“Given the slight risk that fair trial problems may arise, why would they?”

Lisi’s lawyer, Seth Weinstein, will be receiving a copy of the video as part of the Crown’s disclosure. Weinstein told the Star late Sunday that he hasn’t received disclosure on the case and “it would be premature to take a position with respect to the release of the video or to determine how it may impact Mr. Lisi’s fair trial rights.”

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